Tag Archives: New Zealand

In a submission to the United Nations’ Human Rights Council Council for the second Universal Periodic Review of New Zealand’s human rights record, the Law Society identified a need to strengthen mechanisms for the protection of human rights in New Zealand.

The Law Society asserted that there were a number of legislative measures that could hinder the country in meeting domestic and international human rights obligations.

The President of the Law Society, Chris Moore, states that New Zealand’s human rights record fares well in general, this largely depends on rigorous scrutiny of policy and legislation due to constitutional arrangements. He added that because there is no supreme bill of rights or entrenched constitution, the system relies on close observation of the rule of law combined with political restraint. Therefore it is crucial to address concerns and inconsistencies with human rights standards once they have been identified. Moore states:

“Unfortunately on a number of recent occasions legislation has been passed despite conflicting with the rule of law and human rights.”

The Law Society has urged New Zealand to take action in a number of areas to ensure it complies with human rights standards and the rule of law.

“There have been twelve pieces of legislation in recent years that have been identified as inconsistent with the rights and freedoms protected in the New Zealand Bill of Rights, and on a number of occasions urgency has been used in Parliament to limit or bypass select committee scrutiny,” he said.

Among the most recent legislation cited by the Committee, is the controversial Public Health and Disability Amendment Act 2013. Both the Attorney General’s report as well as the Law society pointed out that the Act appeared to be inconsistent with the right to freedom from discrimination and the right to judicial review under section 27 of the Bill of Rights. However the Bill was passed under urgency, thus bypassing the select committee process and denying public submissions. The Law Society took the following position:

“Not allowing the courts to review decisions made in exercise of a legislative function and refusing to provide reasons for rushing the legislation through is quite alien to the expectations we have of our parliamentary process.”

The Law Society expressed its concerns regarding the use of parliamentary urgency to pass bills stating that “[m]isuse of urgency, particularly where it is used to bypass the select committee process, offends against principles of democratic legitimacy”.

Moore listed a number of other bills that raise serious questions regarding New Zealand’s compliance with both international and domestic human rights obligations.

In response to these concerns, the Law Society’s has proposed for the government to take concrete, targeted steps in order to increase the visibility of international human rights obligations in New Zealand. In its submission, the Law Society has also advised that the government establishes a formal process for publicising, considering and responding to human rights recommendations by United Nations bodies.

A German court in Frankfurt (Beschl. v. 14.05.2012 – Az.: 5/28 Qs 15/12) has ruled that a request for mutual legal assistance from the United States regarding stripping assets belonging to Kim Dotcom, has no basis for legal action in Germany.

Kim Dotcom, the founder of the file-sharing MegaUpload site was arrested in Auckland, New Zealand in January of this year. He had been sought by the US authorities on copyright infringement charges relating to pirated content on his websites.

As a part of the criminal investigation against the file-sharing service Megaupload, certain assets were supposed to be removed. This request was issued by the American FBI when they called for legal assistance from the German authorities.

The Frankfurt judges have since rejected this request, because it contains insufficient evidence. The US legal team failed to demonstrate that a web hosting service for the illegal upload of copyrighted files, amounts to a criminal offence.

According to the German ‘Telemediengesetz’ (communications legislation), a hosting service for foreign files will generally not be accountable unless the host had active knowledge of illegal activity. The judges also emphasised that the concept of knowledge is limited to positive knowledge. Therefore if the service provider believes that it is possible or likely that a specific piece of information is stored on their server, this is not sufficient evidence of knowledge of abuse.

According to the court ruling, there is no legal obligation to monitor the transmitted data or stored information or to search for any illegal activity.

Since the US legal team did not mention any other circumstances that could constitute a criminal offence in their request for mutual legal assistance, the German court concluded that their request for the recovery of assets is unfounded.

One night, walking home in a small remote town in the South of New Zealand, Keira and her friend, became victims in a frenzied unprovoked attack. The attack left her shaken and bruised, while her friend sustained more serious injuries to her left eye and needed hospital treatment. In court, the young girl who had attacked them was unable to explain her behaviour; which had been impulsive, violent and appeared to be entirely without reason or provocation. In fact she had been chatting away to the girls in a bar earlier, where they had all been drinking. The judge rejected her excuse of intoxication in the youth court and, after some time, she admitted that this was not the reason behind the attack.

Like the majority of youth crimes in New Zealand (NZ), this case went through the restorative justice (RJ) system. Due to the nature of the RJ system, the families of the two victims, as well as that of the attacker were deeply involved. The offender’s family are able to speak to the offender publicly and communicate with the victim and their family. This process is often very powerful, especially for the offender and all those closely involved as they are required to deal directly with the crime and it’s effect on the victim.

Restorative Justice in New Zealand
NZ is one of the pioneers in the implementation of restorative justice, especially in relation to young people, and has applied restorative justice (RJ) in it’s youth courts for decades. Restorative justice is certainly not the easy option, it forces the perpetrator to come face to face with what they have done. For young people I can imagine this is particularly powerful, as it appears that many offenders don’t consider the consequences of their actions. It is important to convey the ripple effect crime can have, not only on the victim and their family, but also the effect on the family of the perpetrator, who are left ashamed and often offered little support or sympathy from the community. Restorative justice can be used to allow the victim and the families on both sides to share their stories and to make the offender understand the wider picture, as well as the consequences of their actions on their own life and all those the crime has affected.

Family Group Conferences
The majority of cases are transferred to and handled by Family Group Conferences (FGCs), in which offenders, victims, the police, Child Youth and Family Services, youth advocates and community representatives get together. FGCs are an integral part of the RJ system in the NZ youth justice system. FGCs are lead by a Youth Justice co-ordinator from the NZ Department of Child Youth and Family (CYF). These conferences take place away the formal setting of a courtroom and are ideally also culturally relevant, e.g. a marae (a Māori court). Under the legislation, they are responsible for making decisions concerning the future of the young offender, or making recommendations to the Court. Before attending an FGC, the NZ Youth Court asks the young person whether the charge is “not denied”, rather than taking a guilty/not guilty plea. When a charge is “not denied” it is transferred to the FGC where the young person may nevertheless choose to deny the charge, although in most cases the charge is admitted. The “not denied” mechanism allows the parties to meet and discuss the charge(s) before the offender commits themselves to making a plea. After the offender makes an admission and the facts are clarified and submitted to the court. The court then moves the offender towards reconciliation and gives him/her access to the RJ process.

The Marae
The offender in this case was a Māori girl and the FGC convened in a marae accordingly (this is usually the case when one of the parties is Māori). The marae is a structured setting where both sides are represented along with their families. In 2009, speaking to the New Zealand Herald newspaper, the Māori Affairs Minister Pita Sharples explained the intensity and the efffect the setting of the marae can have on young defendants both culturally emotionally.

“To stand in a court at your marae with your ancestors and your aunties, uncles and cousins – it’s scary. Some will think it’s soft but this is the hard option … This is how we reconnect them. A lot of children are going to court and finding their Maori side…”

After the facts are presented to the marae, the victim, offender and each family member on both sides are entitled to speak. Kiera chose not to speak, however her friend wanted to explain how this attack had left her deeply troubled and depressed even after her injuries had healed.

The victim’s testimony and explanation of the lasting psychological damage that so often follows violence, makes it more difficult for the offender to distance themselves from their crime. Due to the unusual clarity of the facts which showed that this attack was entirely unprovoked, it was difficult for the young girl to justify or explain her actions. Throughout the process the offender was crying, as she was unable to distance herself from the gravity of the situation. Her family, one by one, spoke to her about the crime and each member told her they were ashamed of her actions. This made it clear that her family were not only deeply affected, but were also hurt and disappointed. In this case the girl was unable to explain why she had acted in the way she did, and was deeply shaken by the process. Her family’s response undoubtedly added to the intensity of her remorse.

Direct Approach
Recognising the pain and humiliation caused to those who are close to the offender is arguably much more punishing than removing yourself and being placed behind bars. The distance towards the victim and minimal contact with their own families which is a consequence of incarceration fails to address the problem head on. However punishment is not the purpose of the RJ system, it is rather reconciliation and rehabilitation as well as opening a dialogue between victim and offender. Many offenders want to apologise and contact the victim, while many victims want to emphasise the impact the crime has had on their lives. Naturally the victim is not always willing to participate and without the victim’s involvement there can be no restorative justice process of this kind. RJ can also be mistaken/misused as means for taking revenge and seeking out the perpetrator, or as a way of avoiding a prison or community sentence. These risks do exist and are considered on a case by case basis, as each case is examined individually to assess the suitability of RJ. The aim of RJ is to minimise crime and thus facilitate building and strengthening safe communities.

After the RJ process
Restorative justice processes focus on the victims and perpetrators of a crime and are expected to change/limit re-offending behaviour. Reducing re-offending behaviour is often generally achieved in RJ and conventional criminal justice responses by the referral of offenders to appropriate treatment programmes.
Through RJ, offenders can be active participants in making decisions on what the reparative and rehabilitative outcomes should be. It has been shown, that people who take part in this process are more likely to comply with the outcomes. Therefore it is vital, that the defendant is also heard at the FGC level to ensure he/she is granted some input and the process is more effectively “restorative”.

For victims, RJ has three primary objectives; the restoration of a sense of security, self-respect and dignity, as well as the restoration of a sense of control. Facing the perpetrator can help the victim to overcome the trauma, anger or fear in relation to the offence. However it works in different ways for different people. Kiera’s friend suffered from depression for a number of years after the attack and it’s unclear whether her experience of the RJ process exacerbated or lessened these problems.

Conclusion
Although restorative justice may not heal all wounds, it can be used as a healthy and more direct response to dealing with crime. The application in youth courts appears to be particularly appropriate and largely effective in most cases. Young people are likely to respond positively to the set up of RJ and to the dialogue it creates between the all the parties involved. Juvenile offenders also have a better chance of being rehabilitated than adults, therefore a RJ system focused on rehabilitation and reconciliation is extremely favourable. RJ can allow a flexible, effective and inclusive approach to the needs of young people who have broken the law, their victims and, indirectly, to the interests of the community as a whole.